Upskirt Videos Now Legal In Texas—But What About Child Porn?

SAN ANTONIO, TX—Texas remains the go-to state for lousy legal decisions—possibly even surpassing Florida—and the one just issued from the Fourth Judicial District Court of Appeals only adds to that canon.

At issue was Section 21.15(b)(1) of the Texas Penal Code, something called the "Improper Photography Act." Basically, the law made it a crime to photograph, videotape or in some other way record, broadcast or transmit a visual image of another person without their consent and with the intent to "arouse or gratify the sexual desire of any person"—though for some reason, recordings done in a bathroom or private dressing room are exempt from the statute.

The "victim" in this case was Ronald Thompson, 50, who was arrested at Sea World of Texas in 2011 after parents reported to The Man that Thompson had been swimming with 3- to 11-year-old kids and taking pictures of them.

"Police examination of the camera revealed 73 photos of children in swimsuits, with most of the photographs targeting the children's breast and buttocks areas," reported Bill Barajas of KSAT-TV, based on statements from authorities. "Thompson was indicted by a grand jury on 26 felony counts of violating the Improper Photography statute."

Of course, anyone familiar with federal law might wonder why Thompson wasn't indicted for child pornography, based on the famous mid-'90s case of Stephen Knox, who photographed clothed kids on a playground with similar targeting. That case went to the U.S. Supreme Court, which eventually remanded it to the Third U.S. Circuit Court of Appeals, which sustained its original verdict of guilt. But apparently state law in Texas has no statute based on that decision, and in any case, they don't think too highly of the federal government down there.

And of course, there's the question of whether Thompson's photography, whether published or not, violates 18 U.S.C. §2257A, which requires that records be kept, cross-referenced and made available 20 hours per week of any image which depicts "lascivious exhibition of the genitals," whether the photographic subject mean to lasciviously exhibit them or not. But since the case hadn't gone to trial yet, such questions would have to wait for a later date (unless the feds start moving again on such things, now that Judge Michael W. Baylson has issued his ruling).

But the only thing in front of the appeals court was Thompson's facial challenge to the law's constitutionality, and in a 12-page decision issued Friday, Justice Marialyn Barnard, writing for a three-judge panel, concluded that the "improper photography" statute simply did not pass constitutional muster—and used a porn-related decision to back that up.

"Thompson contends the improper photography statute regulates protected speech by imposing limits on non-obscene photography of a sexual nature," Barnard wrote. "The U.S. Supreme Court has held photography is a form of speech normally protected by the First Amendment," citing U.S. v. Stevens, the dog-fight video case from 2010. "Furthermore, sexual expression that is indecent but not obscene is also protected by the First Amendment," she added, citing the Sable Communications phone-sex decision.

"The First Amendment prohibits laws that abridge freedom of speech," the opinion later states. "Thompson argues the statute has a substantial impact on free speech because there is no careful delimitation of criminal conduct, but rather anyone who takes photographs of non-consenting persons is at risk of violating the law. We agree. We first hold the application of the statute would potentially penalize some protected speech... It is not enough to say a statute is not overbroad simply because it is directed at conduct with intent, if the intent portion of the statute regulates freedoms protected by the First Amendment. Furthermore, the location identifier of subsection 21.15(b)(1)—at a location that is not a bathroom or private dressing room—is so broad the statute seems to criminalize conduct in areas where individuals have no expectation of privacy." [Citations omitted]

There's little doubt that someone taking a photograph to eventually be sexually gratified by it is a legitimate activity, but the appeals court seems to have forgotten that less than a decade ago, there was a great public uproar over "upskirt" videos—videos that were shot on staircases, escalators and the like, where the camera was situated at "shoe level" and aimed upward, under women's skirts so as, unbeknownst to the women, to capture the person's underwear or, in some lucky cases, bare pussy as the woman walked or rode upwards to her destination. Many states have enacted laws against such conduct, and while that wasn't the type of video that got Thompson into trouble, the overturning of the "improper photography" law means that upskirting is no longer a crime in Texas.

"I was very surprised this has proven to be an important statue in what I could call the digital age," said First Assistant District Criminal Attorney Clifford Herberg Jr. "This is the kind of statue that prevents someone from photographing under a woman’s skirt... By holding it unconstitutional, it basically means these cases are now placed in jeopardy of either being dismissed or, in the future, not being filed by law enforcement."

According to the KSAT article, District Attorney Susan Reed intends to appeal the case to the Court of Criminal Appeals, Texas's equivalent of a Supreme Court for criminal matters.